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City of Baton Rouge v. Louisiana Dep't of Environmental Quality

Court of Appeals of Louisiana, First Circuit

April 28, 2015

CITY OF BATON ROUGE, PARISH OF EAST BATON ROUGE
v.
LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY CONSOLIDATED WITH LOUISIANA ENVIRONMENTAL ACTION NETWORK AND BERTHA L. MYLES
v.
LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

Page 14

Appealed from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana. Case No. 630602 c/w 630602. The Honorable Michael R. Caldwell, Judge Presiding.

Daria Burgess Diaz, New Orleans, Louisiana; Douglas J. Cochran, W. Brett Mason, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, City of Baton Rouge, Parish of East Baton Rouge.

Elliott B. Vega, Kathy M. Wright, Spencer B. Bowman, Courtney J. Burdette, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Louisiana Department of Environmental Quality.

Timothy W. Hardy, V. Joyce Matthews, W. L. West, Carlton Jones, III, Baton Rouge, Louisiana, Counsel for Intervenor/Appellee, Louisiana Land Acquisitions, LLC.

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

OPINION

Page 15

[2014 1485 La.App. 1 Cir. 3] THERIOT, J.

The appellant, City of Baton Rouge Parish of East Baton Rouge, (" City Parish" ), filed this appeal contesting the dismissal of their petition for judicial review, which challenged the decision of the Louisiana Department of Environmental Quality (" LDEQ" ) to issue a Type I Solid Waste Disposal Permit to Louisiana Land Acquisitions (" LLA" ). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In October 2006, LLA applied to LDEQ for a Type I Standard Solid Waste Disposal Permit (the " 2006 Permit Application" ) for the operation of an industrial waste landfill on 93 acres located at Brooklawn Drive, two miles west of Scenic Highway in Baton Rouge, East Baton Rouge Parish, Louisiana, in or near the Alsen/St. Irma Lee Community (the " Landfill" ). On April 13, 2009, after determining that " there [was] sufficient capacity at existing permitted landfills to serve the area proposed in the application," LDEQ denied the 2006 Permit Application. Pertinent to some of the City Parish's arguments in this appeal, LLA repeatedly sought to have the denial reversed and the 2006 Permit Application granted, and LLA's appeal of LDEQ's denial of the 2006 Permit Application remains pending in the 19th Judicial District Court, Docket No. 579,336 (the " Pending 2006 Appeal" ). On April 12, 2013, LLA filed an " Unopposed Motion and Order to Continue Scheduling Conference" in the Pending 2006 Appeal. The trial court signed the order continuing the proceeding without date. No further steps have been taken in the Pending 2006 Appeal.[1]

Page 16

[2014 1485 La.App. 1 Cir. 4] On March 14, 2014, LLA again applied to LDEQ for a Type I Solid Waste Disposal Permit (the " 2013 Permit Application" ) for the operation of an industrial waste landfill on the same property that was the subject of the 2006 Permit Application. LDEQ issued the Permit to LLA on April 4, 2014 (the " Permit" or the " 2014 Permit Decision" ).[2]

On May 16, 2014, City Parish filed a petition seeking judicial review of LDEQ's issuance of the Permit[3] (" City Parish v. LDEQ " ). On May 21, 2014, Louisiana Environmental Action Network (" LEAN" )[4] and Ms. Bertha L. Myles (" Myles" ), a resident of a community neighboring the Landfill, also filed a petition for judicial review of LDEQ's decision to grant the Permit[5] (" LEAN v. LDEQ " ). Both petitions for judicial review argued that LDEQ lacked authority to grant the Permit, because the trial court functions [2014 1485 La.App. 1 Cir. 5] as an appellate court when reviewing an LDEQ final decision, and thus, LLA's Pending 2006 Appeal divested LDEQ of jurisdiction and authority to consider and render a decision on the 2013 Permit Application, which had been filed by the same applicant for the same industrial solid waste disposal facility. City Parish also argued that LDEQ had failed to properly consider permitted solid waste capacity; that LDEQ's record lacked adequate proof

Page 17

of zoning from City Parish; and that the permit contained technical defects. City Parish sought a stay of the permit decision pursuant to La. R.S. 30:2050.22 during the pendency of the appeal.

LLA intervened in the proceedings for judicial review, and City Parish v. LDEQ and LEAN v. LDEQ were consolidated pursuant to unopposed motions for transfer and consolidation.

LDEQ and LLA excepted to the petitions for judicial review on the basis of no right of action and lack of subject matter jurisdiction, and alternatively moved to dismiss the petitions. LDEQ and LLA argued that City Parish had no right of action to bring the petition for judicial review because City Parish failed to raise the issues complained of prior to the issuance of the final permit decision by LDEQ as required by La. R.S. 30:2014.3 and that the trial court lacked subject matter jurisdiction over the petition for the same reason.

At a July 21, 2014 hearing, the trial court sustained the exceptions raising the objection of no right of action and dismissed the petition for judicial review with prejudice, assessing Posts to the City Parish. A judgment evidencing the ruling was signed on August 7, 2014. City Parish timely appealed the judgment of the trial court.

[2014 1485 La.App. 1 Cir. 6] ASSIGNMENTS OF ERROR

City Parish alleges five assignments of error:

A. The district court erred by ruling that LDEQ had subject matter jurisdiction to review the same subject matter and decide the same issues before the district court in connection with LLA's pending de novo review of LDEQ's 2009 Permit Denial.
B. The district court erred in finding that La. R.S. 30:2014.3 entitled " Review of secretary's public trustee issues, " applies to all issues arising in LDEQ permit proceedings, including the independent statutory mandate that " [p]ermitted capacity shall be considered along with other relevant factors ...

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